People v. Oliphant

• Citation: 399 Mich. 472,250 N.W.2d 443
• Decision Date: 31 December 1976
• Docket Number: No. 6,6
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. OLIPHANT, Jr., Defendant-Appellant. 399 Mich. 472, 250 N.W.2d 443
• Court: Michigan Supreme Court

Page 443

250 N.W.2d 443

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. OLIPHANT, Jr., Defendant-Appellant.

No. 6.

399 Mich. 472, 250 N.W.2d 443

Supreme Court of Michigan.

Dec. 31, 1976.

State Appellate Defender Office by Steven L. Schwartz, Asst. Defender, Detroit, Susan Smith, Peter Lyons, Legal Researchers, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Prosecuting Atty., Ingham County, Lawrence J. Emery, Asst. Pros. Atty., Ingham County, James R. Ramsey, Special Asst. Pros. Atty., Ingham County, Lansing, for plaintiff-appellee.

RYAN, Justice.

Defendant, after one mistrial due to jury disagreement, was convicted on charges of forcible rape, M.C.L.A. § 750.520; M.S.A. § 28.788, and gross indecency, M.C.L.A. § 750.338b; M.S.A. § 28.570(2). After the convictions were affirmed ¹ defendant was granted leave to appeal by this Court ² so that we might consider the issues raised. Following a brief recitation of the facts, we will discuss the issues in the order in which they were briefed by the parties.

Complainant, a Michigan State University student, met defendant while window-shopping on June 1, 1971 and agreed to accompany him to a nearby bar where they could talk. The topics included race, racial prejudice and marijuana. Later she agreed to ride in his car to a place with a band where they might dance. Defendant drove complainant to one bar which was closed, a second where complainant was denied admission because of her age, and a third which did not have a band. During this time period defendant also made three stops at gas stations and one at a car wash. Complainant first indicated her desire to return to her dormitory as they drove away from the closed bar. Defendant, however, insisted on shopping at the other places. Throughout the evening the inside door handle on the passenger side of defendant's car was missing and complainant could leave the car only by rolling down the window and opening the door from the outside.

At this point the testimony of complainant and defendant diverge. Complainant testified that defendant drove to an unfamiliar section of the city, instructing complainant not to 'go for the door' and told her to sit on the console near him so they would look like boyfriend and girlfriend. She testified to a change in his demeanor; that from being friendly, defendant suddenly became threatening and demanding. She testified: 'He said if I din't do what he wanted * * * he had a gun or knife in the car and that he could take care of me with it.' Defendant parked the car in a secluded area and by means of further threats, forced complainant to remove her undergarments and engage in various sexual acts, including intercourse.

Complainant testified that while defendant said he had a weapon, she never saw onw and that defendant did not strike her or tear her clothes. Complainant testified that after intercourse she was allowed to replace her clothing and was driven back to her dormitory. On the way, defendant told her that she shouldn't prosecute him, that she could never prove rape, and that he had a tape recorder in the car. Though she was asked to sign a paper saying she would not prosecute, this never occurred. While she was getting out of the car, defendant again warned her not to prosecute and then said, 'be sure and get the license plate of the car.' Upon returning to her dormitory room, the campus police were called and complainant was taken to the University health center where an examination revealed evidence of recent intercourse.

Defendant, testifying in his own behalf, admitted he had engaged in acts of fellatio and intercourse with the complainant, but stated she had consented. Defendant denied that he threatened complainant or forced her in any way. After dropping complainant off at her dormitory, defendant went to the East Lansing State Police station and stated that, after engaging in sex, he had told complainant that she had an unpleasant body odor, that she had become angry, and that he was apprehensive as to what she might do. Defendant was in the police station when the report of the alleged rape came in.

In attacking complainant's claim that she did not consent to intercourse, the defense counsel elicited testimony which emphasized the fact that complainant was not forced to enter defendant's car, that she did not attempt to flee from defendant as they drove from nightspot to nightspot, that she was not beaten nor her clothes torn, that no weapon was diaplayed, that she did not kick or bite defendant. The fact that defendant presented himself at the police station on the night in question, stating that he had had an argument with complainant and was apprehensive as to what she might do, was also argued to be inconsistent with rape.

In rebuttal, the People brought on three witnesses who testified that they had also been raped by defendant under circumstances in many respects similar to those in which complainant was allegedly raped. The substance of their testimony is discussed hereinafter.

I

The first question presented is whether the trial court committed reversible error in allowing into evidence the testimony concerning the three alleged prior rapes to prove the defendant's scheme, plan or system in raping the complainant. The People offered the testimony of the three witnesses pursuant to M.C.L.A. § 768.27; M.S.A. § 28.1050 which reads:

'In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.'

Past decisions of this Court have upheld the statute's validity. ³ Defendant challenges the applicability of the statute in his case where the only contested issue is consent. The People contend that the defendant had a sophisticated scheme, plan or system whereby, should his advances meet resistence, he would commit rape while orchestrating the circumstances so as to preclude his victims from proving their nonconsent.

A

First, we must determine whether the acts of rape testified to reveal a plan or scheme to arrange the circumstances surrounding the episodes in such a way as to make it appear that the victim consented. A brief summary of the testimony of the three witnesses follows.

Witness 'A' testified that on the morning of December 24, 1970, she was walking to work. When approximately one mile from her destination, defendant stopped his car and offered her a ride. Because it was cold, 'A' accepted the ride and there was friendly conversation about the weather. Upon reaching Eberhard's food store parking lot, 'A's' destination, defendant insisted 'A' accompany him on a short errand to get some marijuana. Though 'A' said she didn't have time because she had to go to work, defendant convinced her. The atmosphere was still friendly.

After driving for a short time and further conversation about marijuana, defendant stopped the car, reached across 'A' and pulled off the inside door handle on the passenger side of the car. Defendant then crudely stated his intention to have intercourse with 'A'. 'A' testified that defendant told her not to do anything to make him angry and to do as he ordered or he would 'hurt' her, 'shoot' her, and 'kill' her. 'A' could not leave the auto after defendant had suddenly become threatening and demanding, because the door handle had been removed. He asked her if she had ever dated a black man and she told him yes.

'A' was ordered to lie on the floor in the back of the car and take off her slacks and underwear while defendant continued to drive. Defendant then parked the car, removed his pants, and moved into the back seat. He had intercourse with 'A' and then told her to replace her clothing and get back into the front seat. During the entire episode 'A' was not struck or beaten, nor did she ever see a weapon, though the threats of harm were repeated.

Defendant stated he would drive her back to Lansing to her original destination. On the way, while still in the countryside, the car apparently ran out of gas. Defendant began to walk to a farm house. When alone, 'A' searched the glove compartment for a gun, found none, and left the car and ran to a road commission truck to get help. The men from the road commission took 'A' to the state police who, in turn, took her to a hospital for examination. No complaint was ever filed.

Witness 'B' testified that she was a student at Michigan State University. On February 1, 1971 she was hitchhiking on Grand River Avenue to meet a friend in Okemos and look for a job. Defendant and another male picked her up in defendant's car and told her they would take her where she wanted to go. Conversation was friendly and touched the subjects of marijuana, defendant's job, and white women dating black men. Defendant also told 'B' that he could get her a job and he would take her to his boss's house.

After stopping at a store, they arrived at a house in an area of Lansing unfamiliar to 'B.' Once inside the house, 'B' was told that it was not the boss's house. Defendant abruptly and crudely stated his intentions. By means of threats, 'B' was forced to dance in the nude. Defendant then made her lie on the sofa and had intercourse with her. During this time, defendant threatened to shoot 'B' up with heroin so she would not know what she was doing, handcuff her, and referred to a shotgun in the closet. After the second man, who had originally been in the car with defendant, also had...